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Babulal Bhikaji Mandloi Vs. Dattatraya Narayan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision No. 634 of 1965
Judge
Reported inAIR1972MP1; 1971MPLJ987
ActsMadhya Pradesh Municipalities Act, 1961 - Sections 20 and 20(2); Code of Civil Procedure (CPC) - Sections 24; Madhya Pradesh Civil Courts Act, 1958 - Sections 3 and 7
AppellantBabulal Bhikaji Mandloi
RespondentDattatraya Narayan and ors.
Cases ReferredKuldip Singh v. State of Punjab
Excerpt:
- - koteswara rao, ilr 47 mad 369 =(air 1924 mad 561) (fb), persona designata are 'persons selected to act in their private capacity and cot in their capacity as judges' the same consideration applies also to a well-known officer like the district magistrate named by virtue of his office, and whose powers the additional district magistrate can also exercise and who can create other officers equal to himself for the purposes of the election act. in that case it was held that section 19 (1) clearly contemplated a reference to an arbitrator and, as such, even when the additional district judge was entrusted with the reference, he acted only as an arbitrator. if sub-sections (4) and (5) had not been inserted in section 20-a, then the decisions of election judges would have been, under the.....bhargava, j.1. an election for mandleshwar municipality was held at mandleshwar where the court of the district judge is situate for the civil district of west nimar, mandleshwar is also within the revenue district. section 20 of the madhya pradesh municipalities act, 1961, provides for filing an election petition. the section reads as under:'20. election petitions.-- (1) no election or selection under this act shall be called into question except by a petition presented in accordance with the provisions of this section.(2) such petition may be presented on one or more of the grounds specified in section 22-- (a) .....(b)(i) .....(ii) ..... to the district judge, where such election or selection is held within the revenue district in which the court of the district judge is situate, and.....
Judgment:

Bhargava, J.

1. An election for Mandleshwar Municipality was held at Mandleshwar where the Court of the District Judge is situate for the Civil District of West Nimar, Mandleshwar is also within the Revenue District. Section 20 of the Madhya Pradesh Municipalities Act, 1961, provides for filing an election petition. The section reads as under:

'20. Election petitions.-- (1) No election or selection under this Act shall be called into question except by a petition presented in accordance with the provisions of this section.

(2) Such petition may be presented on one or more of the grounds specified in Section 22--

(a) .....

(b)(i) .....

(ii) .....

to the District Judge, where such election or selection is held within the revenue District in which the Court of the District judge is situate, and in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue District in which such election or selection is held and if there be more than one such Additional District Judge within the said revenue District, to such one of them as the District Judge may specify for the purpose (hereinafter such District Judge or Additional District Judge referred to as Judge). X X X x'

Dattatraya, the non-applicant No. 1, had filed an election petition challenging the election of Babulal, the applicant, before the District Judge, Mandleshwar. The District Judge, however, transferred the petition for disposal to Shri G. K. Sharma, Additional District Judge, Mandleshwar. The learned Additional District Judge set aside the election of the applicant Babulal. Babulal, there-Fore preferred a revision before the High Court as contemplated under Section 26 of the M. P. Municipalities Act, 1961. In that revision it was urged before the learned Single Judge that under Section 20 of the M. P. Municipalities Act the authority is conferred on the District Judge or the Additional District Judge, as the case may be, as a persona designata or a special tribunal and, as such, the District Judge had no authority to transfer the election petition to the Additional District Judge for disposal and that the Additional District Judge acted without jurisdiction in disposing of the same. Reliance was placed on the decision of a Division Bench of this Court in Motilal v. Narainprasad, 1967 Jab LJ 69 = (AIR 1967 Madh Pra 243). In that case, Rule 43 of the Cantonments Electoral Rules provided that an election petition could be presented to the District Judge of the District within which the election was held or where there was no District Judge, to such Judicial Officer as the State Government might appoint in this behalf. Rule 45 then provided that the District Judge (or the Officer appointed in accordance with Rule 43) or any Judicial Officer subordinate to him and not below such rank as the State Government may by notification prescribe in this behalf to whom the District Judge may transfer the petition, shall dispose of the petition. As the Additional District Judge had disposed of the election petition in that case, the question arose as to whether he acted with jurisdiction. On the wording of Rules 43 and 46 it was held that the District Judge or the special officer appointed by the State Government was a persona designata and the functions assigned to him were ad hoc functions exercisable by that person and not functions additional to those allotted to him under the Civil Courts Act of the State concerned, A similar view was taken in another case, Ghanshyamprasad v. Nootanesh Chandra, Misc. Petn. No. 43 of 1965 (Madb Pra). That case was on the interpretation of the provisions in the Madhya Bharat Municipalities Act, 1954.

2. On the other hand, it was urged before the learned Single Judge that the jurisdiction conferred on the District Judge under Section 20 of the M. P. Municipalities Act is as the presiding officer of an established Court and not as a persona designata and that it was consequently open for him to act in exercise of its general powers under the Madhya Pradesh Civil Courts Act or Section 24 of the Civil Procedure Code to transfer the petition to the Additional District Judge. The provision contained in Section 26 (2) of the M. P. Municipalities Act providing for a revision is indicative of the fact that the District Judge does not act as a persona designata. Reliance was placed in support of this contention on a Division Bench decision of this Court in Ramchandra v. Second Additional District Judge, 1960 MPLJ 379 and Bhojraj v. State of M. P., 1958 MPLJ 459 = (AIR 1958 Madh Pra 286). In those cases also similar provisions of the C. P. and Berar Municipalities Act, 1922, were considered and it was held that the District Judge did not act as a persona designata. Thus, in the first set of cases the conclusion is based on the terms of the special statute which, it is alleged, excludes the power of an Additional District Judge to hear and decide an election petition; while the second set relies upon the principle underlying the case of National Telephone Co. Ltd. v. Post Master General, 1913 AC 546, that when an election petition is required to be heard by the District Judge it is merely by way of extension of its general jurisdiction and not because of its being created an ad hoc tribunal or as persona designata and that the District Judge consequently could act under its power of transferring the case under the provisions of the Civil Courts Act or under Section 24 of the Civil Procedure Code. Because of this apparent conflict, the learned Single Judge has referred the following question for the decision of the Full Bench:

'Whether it is competent for an Additional District Judge whose Court is situated at the same place where the Court of District Judge is situated to hear and decide an election petition which the District Judge has transferred to it for disposal having regard to the provisions contained in Section 20 of the Madhya Pradesh Municipalities Act, 1961 ?'

3. It would be helpful at this stage to discuss some cases of the Supreme Court in which the question of persona designata has been considered. The first case is that of Central Talkies Ltd. v, Dwarka Prasad, AIR 1961 SC 606. Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) provides that 'no suit shall, without the permission of the District Magistrate, he filed in any civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds.' Section 2 (d) of the said Act defines 'District Magistrate' as under : ''District Magistrate' includes an officer authorized by the District Magistrate to perform any of his functions under this Act.' In this case, the District Magistrate, to start with, made over the case to the Additional District Magistrate, but the latter sent back the case to the District Magistrate asking for a transfer because he had been approached on behalf of one of the parties. The District Magistrate thereafter passed an order transferring the case to another Additional District Magistrate for disposal. The question raised before the Supreme Court was as to whether the District Magistrate could transfer the case as indicated above. In that case, it was urged that on the wording of the U. P. (Temporary) Control of Rent and Eviction Act the 'District Magistrate' mentioned in Section 3 was a persona designata and that: either he or an officer authorized by him to perform his functions could grant the permission; inasmuch as the District Magistrate had not authorized the Additional District Magistrate, to whom the case was transferred, and as the transfer in question was in exercise of the general power of transfer, the Additional District Magistrate acted without jurisdiction. Their Lordships of the Supreme Court repelled this contention. They held:

'The argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of 'District Magistrate' the special authorisation by the District Magistrate had the effect of creating officers exercising the powers of a District Magistrate under the Eviction Act. To that extent, those officers would, on authorisation, be equated to the District Magistrate. A persona designata is 'a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.' (See Osborn's Concise Law Dictionary, 4th Edn., p. 253). In the words of Schwabe, C. J. in Parthasaradhi Naidu v. Koteswara Rao, ILR 47 Mad 369 = (AIR 1924 Mad 561) (FB), persona designata are 'persons selected to act in their private capacity and cot in their capacity as Judges' The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Election Act.' (p. 609).

It was, therefore, held that inasmuch as under Section 10(2) of the Code of Criminal Procedure the Additional District Magistrate could exercise all the powers of the District Magistrate, the Additional District Magistrate, to whom the case was transferred, could have validly disposed of the application for granting permission to evict. From this decision of their Lordships of the Supreme Court it is clear that a person ascertained as a member of a class or as filling a particular character cannot be dubbed as a persona designata. A person to be called a 'designated person' must be selected to act in his private capacity and not in his capacity as a Judge.

4. The second case is of Hanskumar v. Union of India, AIR 1958 SC 947. Section 19(1)(b) of the Defence of India Act, 1939, provided for appointment by the Central Government of an arbitrator to determine the compensation payable to a party whose property was compulsorily requisitioned. That section provided that the arbitrator so appointed should be a person qualified for appointment as a Judge of a High Court. Section 19 (1) (f) of the Act further provided that an appeal shall lie against the arbitration award to the High Court. In this case the facts were that the Central Government had referred the determination of the compensation to Shri Jafry, Additional District Judge, Khandwa, whose decision was subjected to appeal before the High Court and was disposed of by a Bench of the Nagpur High Court. Their Lordships also granted a certificate for appeal to the Federal Court under Sections 109 and 110 of the Code of Civil Procedure. When the matter ultimately came before their Lordships of the Supreme Court, an objection was raised that the judgment of the High Court passed in appeal under Section 19 (1) (f) was an award and not a judgment, decree or order within the meaning of Sections 109 and 110 of the Code of Civil Procedure and that the appeal before the Federal Court or its successor, the Supreme Court, was not tenable. That objection was upheld by the Supreme Court. In that case it was held that Section 19 (1) clearly contemplated a reference to an arbitrator and, as such, even when the Additional District Judge was entrusted with the reference, he acted only as an arbitrator. In that context, it was held:

'In that case, the Court hears the matter not as a Civil Court but as persona designata, and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts.'

It was, however, emphasised in that case that a statute, however, might provide for the decision of a dispute by a Court as Court and not as arbitrator, in which case its decision will be a decree or order of Court in its ordinary civil jurisdiction, and that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended therein. It was further held in that case that inasmuch as an appeal is essentially a continuation of the original proceedings, the decision of the High Court in appeal could not be treated as a judgment or decree or order within Sections 109 and 110 of the Code of Civil Procedure and that the appeal before the Federal Court was not tenable.

5. That decision came for consideration before the Supreme Court in Collector, Varanasi v. Gauri-Shankar, AIR 1968 SC 384 where, on interpretation of Section 19 (1) (f) of the Defence of India Act, 1939, it was held that once the appeal was preferred to the High Court, it no longer retained the character or arbitration proceedings and the High Court functioned as a Court and not as a designated person and, to that extent, their previous decision in AIR 1958 SC 947, was overruled. In that case, it was held:

'Prima facie it appears incongruous to hold that the High Court is not a 'Court'. The High Court of a State is at the apex of the State's judicial system. It is a Court of record. It is difficult to think of a High Court as anything other than a 'Court'. We are unaware of any judicial power having been entrusted to the High Court except as a 'Court'. Whenever it decides or determines any dispute that comes before it, it invariably does so as a 'Court'. That apart, when Section 19 (1) (f) specifically says that an appeal against the order of an arbitrator lies to the High Court, we see no justification to think that the legislature said something which it did not mean.'

6. The combined effect of the abovesaid three decisions of the Supreme Court is that when a statute confers authority on a judicial officer, one should be slow in saying that the legislature confers such authority on the said judicial officer as a persona designata, especially when a persona designata is 'a person who is pointed out or described as an individual as opposed to a person ascertained as a member of class, or as filing a particular character.' It is from this point of view that the provisions of the M. P. Municipalities Act, 1961, and the Madhya Pradesh Civil Courts Act, 1958, must be considered. Now, in this State the Civil District and the Revenue District are not, co-extensive. In certain cases, two or more Revenue Districts are included in the same Civil District. In conferring authority on the District Judge regarding election petitions arising from the Revenue District where he holds his office while conferring similar authority on the Additional District Judge where he holds his Court in another Revenue District the idea is to confine the disposal of the election petitions within the geographical area comprised in a Revenue District. The idea appears to be to save the parties from unnecessary expenditure of going to long distances to get the dispute settled. Only because two distinct authorities are mentioned in Section 20 of the M. P. Municipalities Act, the conclusion is not justified that the authority is conferred on them as persona designata. The District Judge or the Additional District Judge is referred in that section as a Judge, that is to say, a person holding a judicial office and the reference cannot be said to be a reference to a persona designata as indicated above.

7. It is, no doubt, true that under Section 3 of the M. P. Civil Courts Act the Court of the District Judge and the Court of the Additional District Judge are different classes of Courts and an Additional District Judge is not an adjunct of the Court of the District Judge. Rut from the provisions of Section 7 of the said Act it would appear that the Additional District Judge is not allotted any function of his own. Sub-section (2) of Section 7 provides that an Additional District judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court or original jurisdiction, which the District Judge may, by general or special order, assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge. From this provision it is clear that an Additional District Judge is a delegate of the powers entrusted to him by the District Judge and in the case of such delegation he exercises all the powers of the District Judge, including those of the Principal Civil Court of original jurisdiction. It thus follows that any statutory jurisdiction conferred on the District Judge can also be exercised by the Additional District Judge if the same is entrusted to him by the District Judge. The expression 'any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction' is wide enough to authorise the District Judge to delegate his own powers vested in him under the M. P. Municipalities Act.

Even the Additional District Judge having his seat in the Revenue District is not authorised to exercise any powers on his own. He can exercise only those powers which are delegated to him by the District Judge. If the provisions of Section 20 of the M. P. Municipalities Act are considered in this background, it would be clear that the election petition is to be entertained by the District Judge or his delegate. This is made more clear in Section 20 under the provision which authorises the District Judge to nominate any one of the Additional District Judges for this purpose if in the same Revenue District there are more than one Additional District Judge. In this view of the matter, it would follow that what Section 20 contemplates is that the election petition shall be entertained by the District Judge; and if the matter comes from another Revenue District, it shall be entertained by the delegate or the nominee of the District Judge and that this provision is made with a view to get the election petition disposed of within the geographical limits or a Revenue District, and nothing more. The argument advanced on behalf of the applicant that the decisions of this Court in 1960 MPLJ 379 and 1958 MPLJ 459 = (AIR 1958 Madh Pra 286), are distinguishable because of slightly different provisions of the C. P. and Berar Municipalities Act and the C. P. Courts Act on the interpretation of which the decisions are based loses all significance.

8. Under Section 20-A of the C. P. and Berar Municipalities Act, 1922, the election petition could be presented to the District Judge or the Additional District Judge or to a Civil Judge especially empowered by the Provincial Government in this behalf. Here also the three different judicial officers, namely, the District Judge, the Additional District Judge and the Civil Judge were referred to. In the C. P. Courts Act it is no doubt true that the only Courts contemplated were those of the District Judge and the Civil Judge, and the Additional District Judge was an adjunct of the District Judge's Court. But even under that Act the Additional District Judge could exercise the powers of the District Judge only in those cases which were entrusted to him by general or special order of the District Judge. It would, therefore, appear that the M. P. Civil Courts Act by constituting a separate Court of the Additional District Judge has not effected any material departure from the position which already existed. In 1960 MPLJ 379 (supra), the Division Bench observed:

'To say that the authority for enquiring into the election petition is to be the District Judge or the Additional District Judge or a Civil Judge, First Class especially empowered and therefore the authority before whom an election petition is presented and who is trying acts as a persona designata is to deprive the phrase persona designata of all its real significance. The provision in Sub-section (4) that no appeal shall lie against the decision of the Judge on an election petition and the provision in Sub-section (5) that such decision would be open to revision by the High Court indicate that the Judges mentioned in Sub-section (2) function as Courts and not as persona designata. If these functionaries were intended to act as persona designata, then it would have been wholly unnecessary to provide that their decision would not be open to appeal or that it would be open to revision by the High Court, In that case, the decision would not have been either appealable or reusable as a matter of law. It is because that these authorities were required to determine election matters as Courts and as a part of their general jurisdiction that the Legislature thought it necessary to insert a provision that their decisions would not be appealable but open to revision. If Sub-sections (4) and (5) had not been inserted in Section 20-A, then the decisions of election Judges would have been, under the ordinary law, appealable as well as open to revision. Section 20-A (2) is an instance of enlargement of jurisdiction of Court subject to restrictions on the appealability of the decision. It seems to us necessary to dwell on the matter further. The present case belongs to the category of the cases reported in 1913 AC 546 and ILR 47 Mad 369 = (AIR 1924 Mad 561) (FB).'

It may be mentioned here that the die-turn in ILR 47 Mad 369 = (AIR 1924 Mad 561) (FB), that 'persona designata are persons selected to act in their private capacity and not in their capacity as Judges' was specifically approved by their Lordships of the Supreme Court in AIR 1961 SC 606, already referred to. The abovesaid observations of the Division Bench of this Court, therefore, appear to be consistent with the three Supreme Court eases, already referred to.

9. Shri Dabir, learned counsel for the applicant, however, strenuously urged that under Section 23 of the M. P. Municipalities Act, 1961, the election petition is required to be enquired into and disposed of according to such summary procedure as may be prescribed by rules made under the Act and the Rules framed under the Act clearly indicate that the function entrusted to the District Judge or the Additional District Judge, as the case may be, was not an enlargement of the jurisdiction already existing but as a specific authority, if not a persona designata. To start with, he referred to the definition of a 'Judge'. That definition does nothing more than to refer to the District Judge or the Additional District Judge in terms of Sub-section (2) of Section 20 of the M. P. Municipalities Act. It may be noted that the function of Section 20 of the Act is not only to indicate the authority before whom the election petition is to be filed but the section also confers power on that authority of the disposal of the petition. In this view of the matter a separate definition of a Judge was not called for and even if any such definition is given, which is nothing but the repetition ef the provisions of Section 20, it makes no difference. We cannot also read in that definition something more which is not in Section 20, as, to that extent, it would be repugnant to the main provision. Shri Dabir drew our special attention to Rules 11, 12, 13, 14, 15, 17 and 18 of the Madhya Pradesh Municipalities (Election Petition) Rules, 1962. These Rules provide that for the purposes of enquiring into such petitions the Judge shall have powers which are vested in a Court under the Code of Civil Procedure, 1908, in the matters specified, such as, discovery and inspection, enforcing of attendance of witnesses, compelling the production of documents, examination of witnesses on oath, etc., and making provision for application of the provisions of the Indian Evidence Act, 1872 etc.

The argument is that if the election petition was to lie before the Court of established jurisdiction, there was no necessity of making any elaborate provision as to the procedure to be followed in the Rules made by the State Government under Section 23 of the Madhya Pradesh Municipalities Act, Similar Rules were made under the C. P. and Berar Municipalities Act as well; and yet in both the cases, namely, 1960 MPLJ 379 and 1958 MPLJ 459 = (AIR 1958 Madh Pra 286), it was held that the Courts acted as judicial officers and not as persona designata. When any authority is conferred on a Court and a procedure is provided therefor, it is no doubt true that the Court is required to follow that procedure. If the Rules curtail any of the powers conferred on such Court under its ordinary procedure, to that extent the ordinary procedure would stand modified. The Rules in question in no way try to curtail such a procedure. What the Rules do is to confer the procedural powers already vested in the Court. To that extent, the Rules can be treated as superfluous or redundant. However, only because the State Government thought it fit to prescribe these rules, it cannot be inferred that the intention of the Legislature was to confer the power on the District Judges or the Additional District Judges, as the case may be, as persona designata.

10. Shri Dabir, learned counsel for the applicant, relied on the decision of the Supreme Court in Kuldip Singh v. State of Punjab, AIR 1956 SC 391, in support of his contention that inasmuch as the M. P. Civil Courts Act, 1958 constituted a distinct Court of the District Judge and the Additional District Judge, the special power conferred under Section 20 of the M. P. Municipalities Act on the two Courts depending on different circumstances must be taken to be the jurisdiction of that Court alone and that the District Judge had no authority to transfer the case to the Additional District Judge. He urged that even if it was held that the jurisdiction conferred under the M. P. Municipalities Act on the District Judge or the Additional District Judge, as the case may be, was not as a persona designata, that jurisdiction was confined to that Court alone and that the District Judge had no authority to transfer the case in exercise of powers under Section 7 of the M. P. Civil Courts Act or Section 24 of the Code of Civil Procedure.

11. Now, in Kuldip Singh's case, AIR 1956 SC 391 (supra), an application for filing a complaint under Section 476 of the Code of Criminal Procedure was made to a Judge who was not the successor of the Court before whom perjury was committed. That Court, therefore, referred the matter to the District Judge. The District Judge thereupon transferred the case to a Senior Subordinate Judge for disposal. That Court passed an order that a complaint be filed. On appeal, the Additional District Judge held that the Senior Subordinate Judge not being a successor of the original Court had no jurisdiction to deal with the matter. On merits, the Additional District Judge found that it was not a fit case warranting the filing of a complaint. When the matter went to the High Court in revision, that Court held that the Senior Subordinate Judge had jurisdiction and that it was a fit case in which a complaint should have been filed. In this view of the matter, the order of the Senior Subordinate Judge was restored and the order of the Additional District Judge was set aside. Now, in that case, it was obvious that the Senior Subordinate Judge not being the successor of the original Court had no jurisdiction to entertain the application under Section 476 of the Code of Criminal Procedure. The question then arose before the Supreme Court as to whether the Additional District Judge, who heard the appeal and came to a contrary conclusion, was an appellate Court to which the appeal from the Subordinate Court would ordinarily lie and in that case would the Additional District Judge be competent to entertain the application in the absence of the successor-in-office of the Subordinate Judge? While considering this aspect of the matter, their Lordships considered the Punjab Courts Act, 1918, and noted that under that Act two distinct Courts, namely, that of the District Judge and the Additional District Judge were established; but the decision turned on the question as to whether an appeal would ordinarily lie to the District Judge or the Additional District Judge.

Their Lordships pointed out that 'subordination' was given a special meaning under Section 195 (3) of the Code of Criminal Procedure and under that section the test laid down was that to make a Court subordinate to another an appeal must ordinarily lie from the former Court to the latter. It was in this context that their Lordships noted that under the Punjab Courts Act inasmuch as the Additional District Judge could discharge the functions, which the District Judge assigned to him, his Court could not be treated as one to which ordinarily an appeal would He from the Court of the Subordinate Judge. In that case, the matter had reached the Additional District Judge by way of appeal and not because the District Judge had by special order directed the Additional District Judge to exercise his functions under Section 195 (3) of the Code of Criminal Procedure. In this context, their Lordships observed:

'The application went instead to the Additional District Judge and what we now have to see is whether the Additional District Judge had the requisite power and authority. That depends on whether the Additional District judge was a Judge of the District Court or whether he formed a separate Court of his like the various Subordinate Judges and that in turn depends on the language of the Punjab Courts Act.'

Their Lordships further went on to say:

'The Court of the Additional Judge is therefore constituted a distinct class of Court, and it is to be observed that the Act speaks of the Court of the Additional District Judge as is the case with certain other Acts in other parts of India.....

The Punjab Courts Act nowhere speaks of an Additional District Judge or of an Additional Judge to the District Court; also, the Additional Judge is not a Judge of coordinate judicial authority with the District Judge. Section 21 (1) states that --

'When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judges as may be necessary.' But these Judges cannot discharge all the judicial functions of the District Judge. Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge. Section 21 (2) states that--

'An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him.' It is true that Sub-section (2) goes on to say that--

'in the discharge of those functions he shall exercise the same powers as the District Judge.' but these powers are limited to the cases with which he is entitled to deal. Thus, if his functions are confined to the hearing of appeals he cannot exercise original jurisdiction and vice versa. But if he is invested with the functions of an appellate tribunal at the District Court level, then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain.

This is a very different thing from the administrative distribution of work among the Judges of a single Court entitled to divide itself into sections and sit as division Courts.'

From the observations, quoted above, it is clear that what their Lordships were concerned with in that case was to see as to whether the Court of the Additional District Judge was a Court to which ordinarily an appeal from the Subordinate Court would lie. In that context it was held that inasmuch as the Additional Judge could act only as a delegate of the District Judge, it could not be said that the appeal would ordinarily lie to him. This was so in spite of the fact that when any case was entrusted to the Additional Judge, he could exercise all the powers of the District Judge. It is thus clear that this particular case is no authority for the proposition that even in those cases where two distinct Courts of the District Judge and the Additional District Judge are constituted with a provision that the Additional District Judge shall exercise the powers of the District Judge with respect to those cases which are transferred to him, the District Judge cannot transfer a case under a statute under which the jurisdiction is conferred on him. The matter, in our opinion, has to be resolved on the principles enunciated in 1913 AC 546, and not on the question as to whether there were two distinct Courts or one was the adjunct of the other.

12. The other limb of the argument of Shri Dabir was that the election proceedings are not common law rights but they owe their existence to statutes and, as such, the ordinary rules of procedure of the Court to which the matter of deciding the dispute is entrusted cannot be invoked, and hence the District Judge had no right to transfer the case to the Additional District Judge. It is no doubt true that the right to stand for election or to elect is not a Common Law right and is a statutory right. Even so, that becomes a civil right as soon as it is conferred by the statute, and once the disposal of the dispute is entrusted to a Civil Court, the procedure of that Court must apply unless it is prohibited by the statute itself. Tt may be noted that there is no such direct prohibition under the M. P. Municipalities Act. No such prohibition can be inferred from the provisions of Section 20 of the Act or the Rules made thereunder as indicated already.

13. This brings us to the consideration of the case in 1967 Jab LJ 69 = (AIR 1967 Madh Pra 243). The decision is based on the following factors, namely: (1) In Rules 43 and 45 of the Cantonments Electoral Rules there is no mention of the District Court or the Principal Civil Court of original jurisdiction, but there is mention of only a District Judge, which, according to several High Courts, have been understood to mean a persona designata; that is to say, Rules 43 and 45 do not assign one or more additional functions to the highest original Civil Court of the District already functioning under the Civil Courts Act, but they create a separate ad hoc tribunal for the express purpose of enquiring into and disposing of the election petitions, (ii) Rule 46 confers the powers of a Civil Court for purposes of summoning and enforcing the attendance of witnesses 'As if he were a Civil Court.' This provision would not have been there if already the District Judge was a Civil Court properly so called functioning under the Civil Courts Act; and (iii) Under the M. P. Civil Courts Act the Courts of the District Judge and the Additional District Judge are distinct entities.

In that case, various decisions under the Hindu Marriage Act of this Court were brought to the notice of the Bench; but those cases were distinguished on the ground that Rule 45 speaks only of a District Judge and Rule 46 speaks about the District Judge as if he were a Civil Court. That is not the case here. On this short ground, that case can be distinguished. The Bench has very candidly observed:

'The distinction is some what fine; but as the wording of the rules stands and in the absence of an appropriate notification by State Government the Additional District Judge had no jurisdiction to enquire into election petitions.'

We may also point out that in that case the question whether the District Judge could be treated as a persona designata as defined in AIR 1961 SC 606, was not at all considered. The effect of other Supreme Court decisions was also not considered. We, therefore, feel that the observations in that case are confined to that particular case and are not of general application.

14. For the abovesaid reasons, the answer to the question must be given in the affirmative.


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